Open Meeting Act Enforcement Problems in Oklahoma

Oklahoma's Open Meeting Act, which applies to local governments, ends with an unusual provision. That provision is the only provision in the act that deals with enforcement. It says that a willful violation of a provision is a misdemeanor, and that someone guilty of a violation may be fined up to $500 and/or imprisoned in a county jail for up to one year.

Is there any other nation in the world that would allow someone to be imprisoned for not properly going into executive session? And is there any other nation in the world that would use such an expensive, difficult, hamfisted enforcement process for a transparency law?

You may not have guessed it yet, but this is partially another legislative immunity blog post. According to an article in Tuesday's Tulsa World, three citizens brought a civil action against the Tulsa council for a violation the open meeting act. It wasn't as if the district attorney was going to go after the council for an executive session infraction, was it?

Not only did the county judge determine that the citizens did not have standing to bring a civil suit under the open meeting act, but she also determined that the court lacks jurisdiction because the council members have absolute legislative immunity and cannot be sued in the matter.

In other words, because they were acting as legislators, the open meeting act cannot be applied to them. Since the open meeting act only applies to these legislators' meetings, this means that all local legislators, including members of many boards and commissions other than the council, are effectively excluded from the open meeting act.

I think we can all agree that the drafters of the constitutional Speech or Debate Clause did not foresee its use to prevent legislators from being subject to transparency laws. I think we can also agree that the legislators who draft these transparency laws believe that the laws apply to them.

If everyone agrees that legislators should be subject to transparency laws, then why not let them be subject to transparency laws? The alternative is self-regulation, which is clearly not something legislators are good at.

Take this instance. The mayor refused to leave when the council went into executive session, so the council voted to exclude him from the session, since it was about him. However, officials are prohibited from taking votes while in executive session. The council's attorney told the council that the vote was proper because the executive session had not started because the door was not shut. But an executive session begins when a vote is taken to go into executive session.

Is the council expected to determine whether its attorney was right or wrong? Who will they go to for advice, their attorney?

Transparency programs, like ethics program, require independent, expert advice, and independent, civil or administrative enforcement. And legislators have to be willing to ignore the Speech or Debate Clause and allow themselves to be subject to citizen complaints against them heard by an independent individual or body. Arguing that a transparency law cannot be enforced against them is not going to do great things for the public's trust in them.

Robert Wechsler
Director of Research-Retired, City Ethics

---